SB 228-MUNICIPAL LAND USE REGULATION  9:08:23 AM CHAIR LESIL MCGUIRE announced SB 228 to be up for consideration. SENATOR FRED DYSON, sponsor of SB 228, said this measure protects real property. Many people live in communities that are increasingly urbanized and land zoning and regulations follow. Cities invariably come up with new land-use designations, and they can end up trampling on property owners' rights. Under SB 228, if residents move in around a property owner and change the law, whatever was permitted before can be continued unless it is a nuisance. He spoke to people about the definition of nuisance. "The term of art in law, which I think you'll see here, nuisance, as recognized under common law is all the protection we need." An expert would explain that "your property rights never extend to [you] being a nuisance to your neighbors." The neighborhood is protected under common law nuisance laws. He provided quotes about the importance of preserving property rights saying: And this bill particularly carves out senior citizens and the disabled to say that if planners move in around them with new regulations they have at least ten years before they have to come into conformity. Uses allowed before will continue until the land transfers. In his community neighbors have built subdivisions where a person can't park a truck with a logo on the door or leave snow machines in the yard. "You can't even put a sign, including a campaign sign, in your yard, which I think has, maybe, some first amendment rights problems." 9:12:36 AM CHAIR MCGUIRE said there is a whole body of common law in this area. She asked what situation sparked this need to deviate from that recognized common law, and if it was a constituent. SENATOR DYSON replied that it involves several of them. Home businesses are grandfathered in, but they are only allowed at the present level of intensity. Many businesses need to change and grow, so the bill will allow a business to continue unless it is a nuisance or the land transfers. He has people that have a Conex container for storing their animal feed, "and as soon as the city finishes its land use regulations, Conexes will be gone. They'll be gone like Quonset huts are." SB 228 will allow these storage units to remain, and it will allow them to be put up after the regulation changes. A citizen may have planned on doing that before regulations changed, "and the huge lifestyle thing that was the basis of their buying that land - in that area it's often horses - and that would be precluded by a new regulation that wasn't in place when you bought the property." 9:15:17 AM CHAIR MCGUIRE said there could be additional market value to a property with a bill like this. Some people in her district want to park RVs and boats and want to have more than two pets, but they can't. It's interesting. SENATOR DYSON said that view is a purist one, because he has said that previous property rights don't transfer with a land transfer. The new owner will be subject to the new regulations. SENATOR FRENCH said if a person owns property and the city prohibits Conexes, she or he can still put one on the property. "It's the transfer that triggers the new rule." 9:17:22 AM BERNARDO HERNANDEZ, Director, Community Planning Department, Fairbanks North Star Borough (FNSB), spoke in opposition to SB 228. He understands the sponsor's desire to weigh public health and safety and individual property rights. "We're always somewhere in between these two opposites." Planning and zoning is an intensely local effort. Each community has different visions and goals. Land use and sentiments are dynamic. The FNSB has home occupation and grandfather rights ordinances, and it has had zoning since 1949, "and we seem to be doing pretty well at it." Since land use is so local, the community, through the public process, should make its decisions. The public process is a big deal in the FNSB. All of the ordinances are very well scrutinized because there is always someone who is affected. Everybody would agree that a school needs doors to escape and sprinkler systems. All these public sentiments and the individual rights are important. "We're weighing that constantly." This should be left to the local public. SB 228 steps outside of that. It is the state trying to impact the local zoning. In FNSB a person can have grandfather rights up to 50 years, as long as the use isn't discontinued for 12 months. 9:20:39 AM SENATOR STEVENS asked if there is anything in this bill that can't already be done. MR. HERNANDEZ said in Fairbanks it doesn't matter who the person is; decisions are made solely on land use. "We want to stay away from who or what a person is." The FNSB can do any of these things that are in the bill. "Our ordinance works just fine." EILEEN PROBASCO, Planning Chief, Matanuska-Susitna Borough, said she agrees with Mr. Hernandez and opposes SB 228. There is an existing non-conforming use section in the Mat-Su Valley code that allows a use to continue indefinitely, not just ten years. "We have a concern about the authority of this being governed by the state as opposed to the local government because in many cases it is more effective and easily changed on a local level." There is a lot of participation when code amendments come forward. This bill is contrary to a long-standing public policy, which is articulated by an Alaska Supreme Court decision in 2002. The determination was that non-conforming uses are to be restricted and terminated as quickly as possible because those uses frustrate a local government's implementation of consistent and logical land-use planning. The bill is redundant because of the local nonconforming statutes. Local control was transferred to the local entities from the state. 9:24:50 AM SENATOR FRENCH asked the name of the Supreme Court case. MS. PROBASCO said Cizek v. Concerned Citizens of Eagle River Valley. 9:25:45 AM LAUREN KRUER, Planner, Matanuska-Susitna Borough, said applying SB 228 will create complications. Variances are used at the local level, and that is the other half of grandfathering. The variance is for the loophole circumstances. There is nothing like that at the state level. How would the state deal with it? It is better handled at the local level. As a planner, land-use is about use, and it is a tool to create healthy, growing communities. A background like a veteran or senior is a slippery slope. Special interest groups have advocates for laws dealing with safety and equality, "but to put something like that in a land use, you take what kind of keeps land use on an even keel where we deal about the use of the building and not so much about the background of the individual owner." There could then be rules for single mothers or ethnic groups. "Where does it stop?" Planning is about use, not about the person. 9:28:17 AM LARRY ALBERT, Attorney, Anchorage, said Senator Dyson asked him to testify; he had no prior familiarity with SB 228 or the issues associated with it. But he has a background in land use, private property, and related constitutional issues. He recollects that the Cizek case was a dispute over a landing strip that was platted as part of a subdivision, but the legality of the use of it was questioned. The issue of how SB 228 relates to non-conforming use in local land use ordinances can be dealt with in two different ways. There may be present uses and ownership of a property under rules enacted today, but tomorrow the local government may enact new regulations. The question is how the existing uses should be protected - if at all. The purpose of this bill is to protect existing uses of land. He agrees with the witnesses of looking at individual issues and properties. A non-conforming use or variance provision generally requires a permitting process, but SB 228 would be an automatic protection. In the absence of SB 228, if land-use regulations change, an affected property owner would have to apply and be subjected to the terms allowed. 9:32:42 AM SENATOR DYSON asked him to explain "the protections that are against public nuisance that are inherent in this bill, and what the language about common law is, and what remedies neighbors and communities would have against a continuing use of land that was arguably a nuisance to the neighbor or community." MR. ALBERT said a nuisance recognized under common law has a well-established meaning. The restatement of torts by the American law institute, which periodically publishes reference treatises that restates the common law -- law made by torts instead of by legislatures. It has a restatement of the law of torts, and the most recent edition is 1977. Included is a chapter on private and public nuisance, and anyone can look at the restatement and see a compilation of authorities, rules and court decisions on what constitutes a nuisance and what balancing factors a court will consider in decreeing the presence or absence of a nuisance. There is published precedence on nuisance in Alaska. The terms are well-established in law. The term common law nuisance also has a well-established meaning in takings litigation. In the late 19th century the United States Supreme Court has recognized that property rights do not protect nuisances under the Fifth Amendment, and that principle has been continuous. In 1992 a case called Lucas v. South Carolina Coastal Council discussed common law nuisance as not a protected property right. 9:36:10 AM SENATOR DYSON said loud aircraft at the air strip was scaring and waking up neighbors. He asked how the neighbors could have prohibited that nuisance if SB 228 had been in place. MR. ALBERT said he is not familiar with the facts, but under SB 228, his reading is that the neighbors could go to court. There is a private and public nuisance as part of common law. Private persons can bring an action against a nuisance as to their private interests and property. For a public nuisance, private parties and local governments have standing to bring an action declaring an activity to be a public nuisance. If the aircraft activity were dangerous, that gets pretty close to being a nuisance. He suspects that there are preemption issues with the Federal Aviation Administration's authority on location and operation of an airstrip. 9:39:05 AM SENATOR DYSON said a witness talked about the appropriateness of leaving all land-use decisions at the local level, and he is sympathetic to that. But the reason for SB 228 "is that for our founding fathers the protection of private property rights was a huge issue." He quoted [James] Madison: "Government is an institute to protect property; this being the end of government. That alone is a just government, which impartially secures to every man that which is his own. It is not a just government nor is property secure under it where arbitrary restrictions, exemptions, and monopolies deny to part of the citizens the free use of their own land facilities." The protection of private property is a huge issue. Americans are committed to life, liberty, and happiness, but the original wording of that list included private property. It is appropriate for the state to say that the protection of private property trumps local planning and zoning "as long as that property is owned that person there, and that the zoning restrictions can only be applied on the transfer of the land." The folks who homesteaded can do what they have been doing and the government should protect them against well-meaning incursions. 9:41:15 AM MR. ALBERT said he has effectively stated the constitutional principle that is derived from James Madison. The issue is the role of the state versus local government in protecting private property rights. Governments have the responsibility to protect the public health, safety and welfare. At the same time, their welfare is in their private property among other attributes. It is appropriate for Alaska to declare that one element of the general welfare is protecting existing uses of land against prospective changes in regulation resulting in the diminution of land value. The role of local governments to be sensitive to their constituents remains, albeit subject to this protection of existing uses. Local governments could try to fashion their provisions on nonconforming use to be consistent with SB 228. 9:43:09 AM CHAIR MCGUIRE set SB 228 aside. There is significant local concern, but she likes the principle.